Reply #14: Even Roe vs Wade tried to avoid this issue

[happyslug]

Roe Vs Wade, which declared it was unconstitutional to restrict certain abortions, but in that decision the Supreme Court accepted the concept that some restrictions were permitted. The Court ruled that the rules on Abortion that existed in 1792 when the Bill of Rights was adopted, could NOT be restricted by Congress under the due process clause of the Bill of Rights AND given that the 15th Amendment adopted in 1871, extended that concept of denial of "Due Process" to the state (i.e. the states could NOT restrict abortion for that would be a denial of "Due Process of law" except to the extent abortion were restricted in 1792.

The English common law rule as to abortion had been the law of England (and later the American Colonies and even later the States of the Untied States) since the Middle ages. While no court have so ruled (relying instead that some other earlier Judge had applied such rules), the rules on abortion follows Prue-1869 Catholic Doctrine of the same subject (The English Court probably adopted the rule during the Middle Ages as part of the Middle age doctrine that family issues were left to the Church Courts NOT the criminal of King's courts). Yes, Roe vs Wade follows the Catholic Rule on Abortion that existed till 1869 (When Pope Pius IX changed the rule, changes in most rules on abortion in the mid 1800s were driven by the Medical Community NOT religious Doctrine, by 1869 the old rules of three months no longer followed generally accepted medical view and the Medical Community wanted control of birthing and abortion, two aspects that till the mid 1800s were under the jurisdiction of Mid-wives NOT Doctors. The Medical Community wanted control over what had been under the control of Mid-Wives and lobbying Governments to change the rules to make Birthing and abortion under the jurisdiction of Doctors instead of Mid Wives. The only thing Pope Pius IX did was ruled that since it was clear by medical evidence that no real change occurred at "Quickening" the old rules of three no longer had medical support and he thus adopted the modern Catholic Rule of no Abortion from conception onward). Notice the Pope was reacting to the demand of the Medical Community NOT any real religious doctrinal change). Yes, I am trying to keep this paragraph neutral as possible, I do NOT want this thread to get hung up on the Religious Argument on Abortion, but I mention it is passing to show WHERE the English Common Law Rule Came from and that even the Catholic Church has had to change it rules do to improvement in knowledge as to the development of a Fetus. If you what to discuss Abortion and the Catholic Church please start another thread, don't hijack this one.

Anyway, the US Supreme Court in Roe vs Wade adopted the English Common Law Rule as to Abortion as being Constitutionally protected. The Court followed the Common law rule in dividing up pregnancy into three periods, 1-13 weeks, 14-26 weeks, 27 to birth (Please note all pregnancy is dated from a woman's last period, thus the day a woman gets pregnant she is already two weeks Pregnant, since a woman is capable of conceiving a fetus about two weeks after her previous menstrual cycle).

The Supreme Court ruled that during the first trimester, the state could impose NO RESTRICTIONS as to abortion (Except as to issue of the Woman's health i.e. the state can outlaw abortion methods that are unsafe for the woman). During the Second Trimester, reasonable restrictions were permitted, but more to make sure the abortion is safe then any restriction as to the abortion itself. The Court did permit States to outlaw abortion in the third trimester, providing it is still permitted for the health and safety of the Woman carrying the Fetus. Subsequent decision of the Supreme Court has dropped these rules, determining more and more to the state. The Court have permitted the states to expand the restrictions the state can impose on women seeking abortion in the First and Second Trimester then anything else (Mostly because most women who are in the Third trimester want the child so abortion is NOT an issue except in those rare cases where is is clear the fetus will be born dead or would die shortly after birth do to severe birth defects, again another issue NOT relevant to this subject and mentioned only in passing).

I go into the above to show that even under Roe vs Wade, the state (in the form of the Court in this case) have always had permission to restrict abortion during the last trimester. Under Catholic Doctrine of the Middle Ages this was a period when the Fetus was "ensouled" i.e. was given a Soul by God. Under Catholic Doctrine (and English Common law) during the third trimester (After the Fetus had "Quickened") it could theoretically live outside the womb and as such could NOT be aborted for that would be infanticide and doctrine rejected by the Catholic Church and the English Common Law.

Once you accept the doctrine that a Fetus in the last Trimester is viewed as the same as a new born baby similar rules has to apply to such a Fetus as to new born Babies (for births at the point in the pregnancy was known even in the Middle Ages with some even surviving to adulthood, even today a fetus at 24 weeks is the earliest any Fetus has survived with modern Medical treatment for fetus prior to 24 week just are NOT capable of surviving). Woman, in this part of the Pregnancy have to balance her wants with demands of another human being (And this was true even under Roe vs Wade, in addition to the subsequent Court rulings modifying Roe vs Wade).

Thus the real issue would you permit a woman to take home a baby, knowing such a mother could NOT take care of the Child? Most people would say no. Please remember we are NOT talking of a First or Second Trimester Fetus, but a Third trimester fetus, which can survive outside the womb (This Fetus is a borderline Third Trimester but still a Third Trimester). Do we want to protect such a fetus? Remember it can survive outside the womb (in theory at least) so if you believe we should try to save the baby if it is outside the womb, should be not try to save it just because it is still inside the womb? The flip argument is also good, can we restrict a woman's right to live her life as she see fit just because she is carrying a fetus that can survive without her? Please note we are NOT discussing First or Second Trimester fetuses this case, just third trimester fetuses.

My own opinion is I like Roe vs Wade it is a good job of balancing between two conflicting desires of our society, on the one hand the right of women to be as free as possible from Government Control AND protection of the weakest members of our society. The English Common law Rule (and the similar Middle Ages Catholic Doctrine) provided the same balance and thus was adopted by the Supreme Court in Roe vs Wade. In cases like this one it would restrict what a woman can do, but only for a period of three months (And then only after she had accepted the fact she was pregnant and did nothing for the six month period where she could have obtain an abortion).

One last comment, please note she was receiving some form of Medical care, thus Medical care reform is NOT an issue in this case (Through her medical provider may have forbade any abortion being paid during the previous six months and thus an issue not mentioned in the article and thus she never really had an option of an abortion during her pregnancy, but again, that is an issue the courts have said is a funding issue left up to each state, but may be the reason she never obtained an abortion).